NRC & EPA: CLEANUP PARADIGMS...

[Randall_F_Brich@RL.gov]

     RADSAFERs (and others interested in rad cleanup standards):
     
     Following is NRC's response to EPA (EPA's original letter is at the 
     end of this message in case you need to refresh your memory on its 
     salient points). Recognize that NRC's final standard is presently 
     before the Commission. 
     
     Randy Brich, USDOE, Richland, WA
     e-mail: randall_f_brich@rl.gov
     
     Below is my transcription of a response letter from Shirley Jackson, 
     Chairperson, NRC to Carol Browner, Administrator, EPA :  
     
     February 21, 1997
     
     The Honorable Carol M. Browner
     Administrator
     Environmental Protection Agency
     Washington, DC 20460
     
     Dear Administrator Browner:
     
     I am writing in response to your letter of February 7, 1997 in which 
     you expressed concern over positions that NRC may be taking regarding 
     groundwater remediation and cleanup levels in its final rule on 
     radiological criteria for decommissioning.  In particular, you 
     indicated concern over the possibility that NRC would increase the 15 
     mrem/yr dose criterion for license termination as contained in NRC's 
     proposed rule to 30 mrem/yr, and NRC might delete the separate 
     groundwater requirements of the proposed rule.
     
     To begin, the Commission believes that the nation deserves a uniform 
     approach to radiation regulation which protects people from 
     significant hazard regardless of the source, whether it is Atomic 
     Energy Act materials, naturally occurring materials, or other 
     materials, and which focuses regulatory resources on the most 
     significant hazards.  Further, below an upper safety limit, 
     cost-benefit considerations must apply in site specific implementation 
     of the radiation protection standards.
     
     The NRC staff is currently engaged in preparing a final rule for 
     Commission consideration.  The Commission wants to assure you that it 
     will give careful consideration to EPA's views in reviewing the NRC 
     staff's recommendations for finalizing the rule, particularly in the 
     matters cited in your February 7 letter.  Nonetheless, as you are 
     aware, the NRC staff has previously briefed the OMB, and I have 
     previously written to Sally Katzen of OMB, providing the Commission's 
     preliminary view that the separate groundwater protection requirement 
     may be deleted, and that the appropriate dose criterion is in the 
     range between 15 and 30 mrem/yr.  Consequently, there is a possibility 
     that in the final rule, when promulgated, the NRC approach may differ 
     from what EPA is recommending.  However, the Commission believes that 
     its position on these matters will be consistent with the above 
     principles, as well as with the proposed Federal Radiation Protection 
     guidance.
     
     In your letter you refer to certain problems with consistency posed by 
     two existing NRC guidance documents, the Branch Technical Position 
     "Disposal of On-Site Storage of Thorium and Uranium, from Past 
     Operations," 46 FR52061, October 1981, and Policy and Guidance 
     Directive FC 83-23, "Guidelines for Decontamination of Facilities and 
     Equipment Prior to Release for Unrestricted Use or Termination of 
     License for Byproduct, Source or Special Nuclear Material License," 
     August 1987.  The Commission recognizes the importance of consistency, 
     and its views and concerns on this matter are discussed further in the 
     enclosure to this letter.  We will prepare updated regulatory guidance 
     which reflects the final rule and delete, as appropriate, reference to 
     guidance that is no longer applicable.
     
     We appreciate being made aware of the possibility that if the EPA 
     recommendations are not incorporated into our final rule, EPA would 
     reconsider its policy on exempting NRC sites from the National 
     Priorities List (NPL).  The Commission will certainly take this into 
     consideration in its deliberation on the final rule.
     
     I also appreciate the offer of continued exchange between the EPA and 
     NRC staffs.  As you know the two staffs have been engaged in 
     continuous dialogue on the difficult issues related to this rulemaking 
     for some time, and the Commission believes that a thorough exchange of 
     views at the staff level has already occurred without progress on 
     reaching a mutually agreeable approach to risk harmonization.  
     However, if you would find it useful, I would be pleased to meet with 
     you to discuss general EPA-NRC interface issues.  In the event that we 
     agree that legislation is needed to achieve risk harmonization, as 
     contemplated on our 1992 MOU, I am prepared to discuss that option.
     
     Sincerely,
     
     /s/
     
     Shirley Ann Jackson
     
     Enclosure: As stated
     
     
     Enclosure
     Additional Discussion of the Need for Regulatory Consistency
     
     NRC and EPA agree that regulatory consistency in important.  The issue 
     of consistency arises in three different ways (1) internal consistency 
     of NRC programs; (2) internal consistency of EPA programs; and (3) 
     consistency between NRC and EPA programs.  Over the past several 
     years, both of our agencies have attempted to make our respective 
     programs more internally consistent, and to work together to achieve 
     consistency between the Agencies.
     
     The joint NRC-EPA efforts in this area have been both generic (e.g.., 
     under the 1992 NRC-EPA Memorandum on Understanding on Risk 
     Harmonization; and through the Interagency Steering Committee on 
     Radiation Standards {ISCORS]) and specific (e.g.., uranium mill 
     tailings, air emissions standards, groundwater standards).  In all of 
     these areas, we have found that there is a tension between achieving 
     internal and external consistency.  This is because NRC and EPA, while 
     generally achieving the same level of actual public health protection, 
     take fundamentally different regulatory approaches.  EPA and NRC have 
     fundamental differences (1) as to what constitutes acceptable risk, 
     and (2) whether to take a holistic
     (i.e.., all-pathways approach) as opposed to a single 
     pathway-by-pathway approach to environmental protection.
     
     Background
     
     In the 1992 MOU, both agencies committed to actively explore ways to 
     harmonize risk goals and to cooperate in developing a mutually 
     agreeable approach to risk assessment methodologies.  The MOU says 
     that if differences cannot be resolved, the matter is to be presented 
     to the heads of both agencies for resolution.  It also says:
     
     If both agencies agree...that duplicative regulation in a particular   
     area is undesirable, but nevertheless is required by law, then the   
     agencies will cooperate in considering and, if appropriate, 
     supporting   legislative changes.
     
     In 1994, the General Accounting Office ("Nuclear Health and Safety: 
     Consensus on Acceptable Risk to the Public is Lacking," 
     GAO/RECD=94-190) found disparities in the standards established by the 
     different agencies and a lack of consensus on what these standards 
     should be.  Also in 1994, Senator John Glenn wrote to NRC, EPA, and 
     the Office of Science and Technology Policy requesting an interagency 
     "path forward" for solving the problems identified by GAO.  ISCORS was 
     formed in 1995 to improve coordination of interagency activities and 
     to minimize duplication of efforts in the establishment of cleanup 
     standards for radioactively contaminated sites.  While ISCORS has made 
     some progress in risk assessment, and has identified risk management 
     problems, it has been less successful in resolving risk management 
     issues. {ISCORS can only make recommendations to heads of Agencies}
     
     In 1995, in response to Senator Glenn's letters, NRC and EPA staffs 
     jointly completed a "White Paper on Risk Harmonization" and ISCORS 
     produced "Risk Harmonization Recommendations."  Both EPA and NRC have 
     been attempting to implement these recommendations.
     
     Approach to Environmental Pathways
     
     NRC's objection to the pathway-by-pathway approach is not merely that 
     it is inconvenient.  NRC recognizes the historical context and legal 
     constraints under which EPA operates.  NRC believes that the 
     pathway-by-pathway approach is unwise because it encourages the 
     compartmentalization of issues that should instead be looked at as 
     part of the whole.  This is an issue of what the appropriate approach 
     should be to environmental protection.
     
     For example, EPA and NRC have consistently disagreed with respect to 
     the need to include separate groundwater protection criteria in 
     decommissioning and HLW disposal standards.  In both cases, NRC 
     believes that individual protection criteria, which take into account 
     all pathways, are sufficiently protective of the groundwater pathway, 
     and represent a more uniform and comprehensive approach to protecting 
     public health and safety.  As such, NRC does not agree that there is 
     any need for separate groundwater protection criteria.  Additionally, 
     NRC continues to believe that EPA's application of Maximum Contaminant 
     Levels (MCL's) to decommissioning and repository disposal of HLW is 
     fundamentally incompatible with the technical basis EPA employed to 
     derive these levels.  The issue is still unresolved in both 
     rulemakings.
     
     Acceptable Risk
     
     NRC and EPA agree that there are risks that are generally 
     unacceptable, risks that are generally acceptable, and risks that may 
     or may not be acceptable depending upon cost-benefit and technical 
     tradeoffs.  The problem is that EPA and NRC disagree as to the 
     numerical cut-points for making these decisions.
     
     Groundwater ACLs.  The philosophical difference between NRC and EPA 
     regarding "acceptable risk" is illustrated by the following example of 
     groundwater Alternate Concentration Limits (ACLs) for Uranium Mill 
     Tailings Radiation Control Act (UMTRCA) Title II uranium mills.  
     Briefly, EPA considers a targeted lifetime risk of 10E-6, but will 
     back off (based on technical and/or economic considerations) to a 
     lifetime risk of 10E-4 or above.  NRC considers lifetime risks as high 
     as 10E-4 to be acceptable for ACL, but applies ALARA to move the 
     standard to a more stringent level.  Effectively, there appears to be 
     little difference between the final standards selected by our two 
     agencies, but the difference in our respective approaches to selecting 
     those standards has caused several years of controversy.  EPA finally 
     agreed to NRC's wording in the ACL guidance document, but required the 
     10E-6 lifetime risk approach to ACLs be applied at DOE's UMTRCA (Title 
     1) sites, which NRC ultimately licenses.
     
     Decommissioning Rule as Attempt by NRC to Achieve Internal Consistency
     
     NRC agrees with EPA that existing NRC guidance recommends cleanup 
     levels for some radionuclides that may result in doses higher than 15 
     mrem/year.  The existing guidance (1981 Branch Technical Position and 
     Policy and Guidance Directive FC 83-23), which was generated years 
     ago, is a mixture of concentration limits, exposure rate limits, and 
     references to EPA regulations; and not uniform dose limits (see 
     attachment from SECY-91-342A).  The related guidance documents will be 
     revised following issuance of the proposed decommissioning rule, which 
     will contribute to achieving consistency.  NRC believes that 
     establishing a uniform dose criterion will make our decommissioning 
     decisions both more rational and more consistent in terms of actual 
     public health protection.  This is one of our major reasons for going 
     forward with the rulemaking.
     
     CERCLA and the Decommissioning Rule
     
     NRC understands EPA's concern that existing NRC criteria may be 
     inconsistent with EPA's views on CERCLA. However, attempts to achieve 
     consistency with CERCLA policy for non-radiological cleanups may move 
     EPA away from consistency with NRC.
     
     NORM and Indoor Radon
     
     From a national policy perspective, it makes little sense to require 
     remediation of sites contaminated with source material (which is under 
     NRC's authority) at the expense of hundreds of millions of dollars, 
     when larger volumes of NORM contamination (under EPA's authority) 
     posing comparable or greater hazards go unaddressed, for instance, 
     coal ash.  We question whether NRC-regulated materials should be held 
     to a level of stringency not enforced or recommended for these other 
     materials.  We would like to achieve harmonization of these 
     inconsistencies (e.g.., through the comparative risk initiative with 
     ISCORS)
     
     The following is a copy of the text of a letter dated 2/7/97 from Ms. 
     Browner, Administrator, EPA to Shirley Jackson, Chairman, NRC:
     
     
     Shirley Ann Jackson
     Chairman
     Nuclear Regulatory Commission
     etc.
     
     I am writing regarding the NRC rule on radiological criteria for 
     license termination that is expected to be finalized early this year.  
     We are concerned that NRC may choose to take a more lenient position 
     than it previously proposed concerning ground water remediation and 
     cleanup levels.
     
     We understand that NRC is giving particular consideration to making 
     significant changes from its proposed rule of August 22, 1994.  The 
     EPA finds these changes, such as increasing the proposed dose limit 
     from 15 mrem/yr to as much as 30 mrem/yr and eliminating a separate 
     requirement for protecting ground water that could be used as drinking 
     water to the Maximum Contaminant Levels (MCLs) established under the 
     Safe Drinking Water Act, to be disturbing.
     
     With regards to ground water, this Administration's position is that 
     current or potential future sources of drinking water are a valued 
     national resource and should be protected to levels suitable for 
     drinking (e.g., MCLs).  A cleanup standard based solely on a 
     multipathway dose limit (either 15 or 30 mrem/yr) does not ensure that 
     ground water is cleaned up within the aquifer, but instead could rely 
     solely on exposure controls.  Therefore, EPA thinks that it is vital 
     that the NRC rule protect ground water that is a current or potential 
     future source of drinking water.
     
     If in fact our understanding is correct, then EPA would also consider 
     NRC's rule to be not protective under CERCLA and not consistent with 
     this and previous Administrations' Ground Water Policy.  EPA has the 
     authority to choose not to respond to certain types of releases under 
     CERCLA because existing regulatory or other authority under other 
     Federal statutes provides for an appropriate response.  EPA has 
     previously chosen not to list on its National Priorities List (NPL) 
     for CERCLA releases of source, by-product, or special nuclear material 
     from any facility with a current license issued by the NRC.  This 
     decision was made on the grounds that the NRC has full authority to 
     require cleanup of releases from such facilities.
     
     If NRC were to promulgate its rule with the above-referenced changes, 
     EPA would be forced to reconsider its policy of exempting NRC sites 
     from the NPL.  This change in EPA listing policy for the NPL would 
     reflect the EPA view that NRC regulation would not be adequately 
     protective of human health and the environment under CERCLA and the 
     National Oil and Hazardous Substances Pollution Contingency Plan 
     (NCP).
     
     In addition to the issues raised by the NRC rulemaking, there appear 
     to be consistency issues with two existing NRC guidance (NRC Branch 
     Technical Position "Disposal of On-Site Storage of Thorium or Uranium 
     from Past Operations," 46 FR 52061, October, 1981, and Policy and 
     Guidance Directive FC 83-23 "Guidelines for Decontamination of 
     Facilities and Equipment Prior to Release for Unrestricted Use or 
     Termination of License for Byproduct, Source, or Special Nuclear 
     Material License," August 1987) and the NCP and Superfund guidance 
     since they recommend cleanup levels for some radionuclides that may 
     result in doses higher than 15 mrem/yr.
     
     I view these changes to the NRC rulemaking on radiological criteria 
     for license termination, and the potential action that may be required 
     of EPA, to be very serious matters.  We will be happy to work with 
     your staff to ensure the promulgation of a rule, and the development 
     of related guidance, that are consistent with CERCLA.
     
     Sincerely,
     
     Carol Browner